Criminal Justice & the Rule of Law

‘Cooperation’ and ‘Corrupt Intent’ in Barr’s Obstruction Analysis

Scott R. Anderson
Monday, April 29, 2019, 2:34 PM

On the morning of April 18, just hours before the long-awaited release of the Mueller report, Attorney General William Barr convened a press conference to reiterate what he viewed as the report’s “bottom line”: that the special counsel had failed to find sufficient evidence to show that President Trump or his campaign had colluded with Russia or obstructed subsequent investigations.

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On the morning of April 18, just hours before the long-awaited release of the Mueller report, Attorney General William Barr convened a press conference to reiterate what he viewed as the report’s “bottom line”: that the special counsel had failed to find sufficient evidence to show that President Trump or his campaign had colluded with Russia or obstructed subsequent investigations. Critics were quick to dismiss Barr’s remarks as last-minute spin on the president’s behalf, a claim facilitated by Barr’s decision to repeatedly paraphrase Trump’s signature mantra of “no collusion.” And since the Mueller report’s release, observers have correctly identified several instances in which Barr’s depictions of the report fail to line up with reality.

This criticism, however, has overshadowed another important part of Barr’s remarks. At one point, Barr briefly addressed the logic behind his own substantive role in the Mueller report saga, namely his determination that “the evidence developed by the Special Counsel is not sufficient to establish that the President commenced an obstruction-of-justice offense.” First put forward in Barr’s March 24 letter to Congress, this conclusion is arguably Barr’s greatest point of departure from the Mueller report, which states explicitly that such a step is not warranted by the evidence. It has also become the foundation for President Trump’s own repeated claims of “total exoneration.” Yet Barr has provided no written opinion or other justification for it, other than to note that it was reached alongside Deputy Attorney General Rod Rosenstein and in consultation with the Office of Legal Counsel and other Justice Department officials. For this reason, Barr’s brief remarks before the report’s release shed some much-needed light on the reasoning behind this critical decision—and what they show is concerning.

Barr began by reiterating that he had “accepted the Special Counsel’s legal framework” and “evaluated the evidence as presented by the Special Counsel” in reaching his conclusion. This implies that Barr did not rely on either his own narrow reading of relevant statutes or his stated view that applying obstruction of justice to certain discretionary acts by the president would “impermissibly burden” the president’s Article II authority, both points with which Mueller explicitly disagreed. Barr then turned to a lengthy discussion of Trump’s state of mind. He opened with a sympathetic description of the “unprecedented situation” Trump faced, in which “federal agents and prosecutors were scrutinizing his conduct” even though “there was in fact no collusion,” before concluding with the following:

[A]s the Special Counsel’s report acknowledges, there is substantial evidence to show that the President was frustrated and angered by a sincere belief that the investigation was undermining his presidency, propelled by his political opponents, and fueled by illegal leaks. Nonetheless, the White House fully cooperated with the Special Counsel’s investigation, providing unfettered access to campaign and White House documents, directing senior aides to testify freely, and asserting no privilege claims. And at the same time, the President took no act that in fact deprived the Special Counsel of the documents and witnesses necessary to complete his investigation. Apart from whether the acts were obstructive, this evidence of non-corrupt motives weighs heavily against any allegation that the President had a corrupt intent to obstruct the investigation.

This focus on the president’s intent to the exclusion of other factors suggests that it played a central, if not determinative, role in Barr’s analysis. As the Mueller report explains, a “corrupt” purpose—defined as “an intent to obtain an improper advantage for [one]self or someone else, inconsistent with official duty and the rights of others”—is a required element of any obstruction of justice offense, including witness tampering and the other related offenses considered by Mueller. If Barr did in fact view the president’s cooperation as evidence “weigh[ing] heavily” against a finding that he had the requisite corrupt intent, then this alone could have provided the legal grounds for Barr’s conclusion that Mueller’s evidence did not establish that the president had committed obstruction.

Key to Barr’s reasoning is the fact that, in his words, the White House “fully cooperated” with the investigation by providing Mueller with “unfettered access to campaign and White House documents, directing senior aides to testify freely, and asserting no privilege claims.” His decision is a major vindication of the “open-book” strategy initially implemented by certain members of Trump’s legal team. Part legal and part public relations, this strategy emphasized cooperation with Mueller as a means of projecting innocence and putting pressure on the special counsel to conclude his investigation. One of the former Trump lawyers most closely associated with this strategy, Ty Cobb, doubled down on the logic behind it during an appearance on the “Skullduggery” podcast shortly after the Mueller report was released:

You have a White House that, contrary to norms, produced every witness [the Mueller team] requested voluntarily, never asserted executive privilege, didn’t assert attorney-client privileges, and produced documents willingly without subpoena, and which didn’t assert executive privilege over this information becoming available to all Americans, which it had the absolute right to do. So I think the transparency here is in stark contrast to any suggestion of obstruction.

Implicit in this approach was a bet that publicly embracing cooperation would make it harder for investigators (and the general public) to conclude that Trump had acted with corrupt motives—and the fact that it appeared to have paid out was not lost on Cobb’s interlocutors. “[Hiring you] may have been [Trump’s] best move,” host Michael Isikoff joked with Cobb. “You’re the one who got him to cooperate.” Nor does it appear to be lost on Trump and his supporters, who have emphasized the extensive cooperation with the special counsel in numerous public statements since the Mueller report’s release.

Yet there’s just one problem: This portrait of complete and total cooperation doesn’t align with what the Mueller report actually says.

Mueller acknowledges that his team “requested that the White House provide [them] with documentary evidence in its possession on the relevant events” and “sought and obtained the White House’s concurrence in . . . conducting interviews of White House personnel who had relevant information.” But otherwise, he does not laud the White House for its extensive cooperation. To the contrary, he spends much of his time discussing a key area where cooperation was not forthcoming: in securing Trump’s own testimony. This in turn helps shape Mueller’s view of Trump’s intent, but in a very different way than Barr.

According to Mueller, the special counsel’s team first requested an in-person interview with Trump in December 2017. Though Mueller described it as “vital to [the] investigation” and “in the interest of the Presidency and the public,” the White House declined. While not discussed in the Mueller report, Trump’s legal argument for doing so was laid out in a January 2018 letter from his attorneys to the special counsel, which the New York Times later published (in what some suspect was a deliberate leak by the president’s defense team). Trump’s attorneys argued that the “unprecedented access and voluntary cooperation” permitted by the Trump administration made an interview with Trump unnecessary. As support, they cited In re Sealed Case (Espy), in which the U.S. Court of Appeals for the D.C. Circuit concluded that grand jury and trial subpoenas could pierce executive privilege only when the requested information was shown to be “important to [the] investigation and practically unavailable elsewhere.” “The information you seek is ‘practically available from another source,’” they wrote to Mueller, quoting Espy, “and your office, in fact, has already been given that other source,” meaning the document releases and interviews that Trump had already authorized. Contra Barr and Cobb, this suggests that Trump did at least threaten to invoke executive privilege regarding his own testimony. And more importantly, it suggests a possible ulterior motive for Trump’s cooperation: to weaken the legal case for compelling him to testify personally.

Whether this argument proved persuasive or not is unclear. But in September 2018, following “extensive discussions” with the Justice Department, the Mueller team provided Trump with certain “accommodations,” including a set of written questions on Russia-related topics. According to Mueller, Trump “did not similarly agree to provide written answers to questions on obstruction topics or questions on events during the transition.” Regardless, in November 2018, Trump provided the special counsel’s office with his written responses, which Mueller includes in Appendix C to his report.

Mueller pulls no punches in describing the president’s responses as “inadequate.” He notes at least 30 occasions where Trump indicated that he “does not ‘recall’ or ‘remember’ or have an ‘independent recollection’” of information requested, while answers Trump did provide were often “incomplete or imprecise.” In response, Mueller renewed his request for an in-person interview so that his team would be able to refresh the president’s recollection and ask follow-up questions. “[T]his is the President’s opportunity to voluntarily provide us with information for us to evaluate in the context of all of the evidence we have gathered[,]” he wrote to Trump’s attorneys. The president, however, again declined.

What happened next is unknown, as the relevant text has been redacted from the Mueller report as grand jury information. Something appears to have finally convinced Mueller that Trump “would not be interviewed voluntarily.” One possibility is that Trump threatened to invoke his Fifth Amendment rights against self-incrimination in a communication with the grand jury—an assertion that, under Justice Department guidelines, would normally be enough to warrant not calling him as a witness. Regardless, Mueller states that he and his team “believed that [they] had the authority and legal justification to issue a grand jury subpoena to obtain the President’s testimony” but decided not to do so, as the “costs of potentially lengthy constitutional litigation” outweighed the anticipated benefits to the investigation. Moreover, Mueller noted, his team had “sufficient evidence to understand relevant events and to make certain assessments without the President’s testimony.” “The principle that intent can be inferred from circumstantial evidence is a necessity in criminal cases,” he observes, “given the right of a subject to assert his privilege against compelled self-incrimination under the Fifth Amendment and therefore decline to testify.”

This point underscores the very different light in which Barr and Mueller view the White House’s cooperation. According to Barr, Trump’s willingness to cooperate with the broader investigation is strong evidence of Trump’s noncorrupt motives. Yet Mueller views Trump’s intent as one major issue on which Trump did not meaningfully cooperate, as he repeatedly refused to provide what would no doubt be the most probative evidence: his own testimony. Without this, Mueller must infer Trump’s motives from the other evidence he has collected, just as if President Trump had asserted his Fifth Amendment rights.

The framework that Mueller lays out for doing so makes clear that he does not view Trump as entitled to any favorable inferences due to his ex post cooperation, unlike Barr. Citing case law and other authorities, Mueller instead identifies various forms of circumstantial evidence that can indicate corrupt intent, including “a pattern of potentially obstructive acts.” He also discusses several factors that bear on witness credibility, including “whether [a] witness has a good memory,” is “corroborated by other witnesses” or contradicts his prior statements. Notably, several of these are factors that Mueller finds present in Trump’s written responses and other conduct.

Other Lawfare contributors have already reviewed Mueller’s factual findings on obstruction at some length. But it’s worth revisiting some of his specific conclusions on intent. In a few cases, such as Trump’s efforts to prevent disclosure of the Trump Tower meeting, Mueller makes clear that the evidence does not support the conclusion that Trump acted with the corrupt intent necessary to establish obstruction of justice. But Mueller does find “substantial evidence” that Trump had fired former FBI Director James Comey over Comey’s unwillingness to publicly state that Trump was not under investigation, and sought to impact the investigation by directing White House Counsel Don McGahn to remove Mueller and Attorney General Jeff Sessions to either curtail or assume responsibility for Mueller’s investigation. He similarly found “substantial evidence” that Trump had instructed McGahn to lie about this afterward in order to “deflect or prevent further scrutiny.” And Mueller concluded that the available evidence could “support an inference” that Trump’s actions toward Cohen and Manafort were intended to encourage them not to cooperate with the government.

Mueller deliberately avoids drawing any explicit conclusions as to whether this evidence shows corrupt intent or otherwise satisfies an element of a specific criminal offense, on the grounds that this would be unfair to Trump because, under current Justice Department legal opinions, he cannot be indicted and thus would not have the opportunity to defend himself in a court of law. But the conduct Mueller describes certainly seems to reflect the requisite pursuit of “improper advantage ... inconsistent with official duty” that Mueller defines as corrupt intent. Moreover, much of the language that Mueller uses to describe his findings—such as the presence of “substantial evidence” or evidence capable of supporting a “reasonable inference”—is associated with the standard of review that appellate courts apply when reviewing a jury’s finding of fact in a criminal case. Such language may imply that Mueller believes that, if a jury were to conclude that Trump acted with the requisite corrupt intent on the basis of the evidence in Mueller’s report, an appellate court would uphold that finding. This is not the same as concluding that this evidence necessarily supports such a finding, of course. But it suggests that Mueller views the evidence in his report as meeting the minimum level normally required for bringing charges under Justice Department guidelines, namely “admissible evidence sufficient to obtain and sustain a guilty verdict.”

So how does this square with Barr’s conclusions? Thus far, Barr has pointed only to the “heavy weight” he assigns the White House’s cooperation in determining Trump’s motives. Relying solely on that cooperation, however, would require that such evidence outweigh the various circumstantial evidence underlying Mueller’s specific findings suggesting corrupt intent. Barr would also be looking to evidence of White House cooperation that mostly lies outside the report itself, was not given any apparent weight by Mueller’s team of experienced and well-regarded prosecutors, and did not even extend in practice to the most probative evidence of intent, namely Trump’s testimony. In short, it would constitute a near wholesale rejection of Mueller’s work on obstruction as it relates to Trump’s intent—a far cry from the simple “evaluat[ion] [of] the evidence as presented by the Special Counsel” that Barr claimed to offer.

Of course, Barr may have rooted his decision to clear Trump of obstruction in other factors he has not discussed. Perhaps he sees additional faults in Mueller’s evidence of obstruction or believes that other prudential factors would have weighed strongly against any conclusion that the evidence is sufficient to bring charges, if that were a legally available option. Or perhaps Barr’s broader legal views on how the president’s Article II authority limits what constitutes obstructive conduct crept back into his final assessment, despite his assertions to the contrary. Regardless, in departing so severely from Mueller’s own analysis and conclusions, Barr owes both Congress and the public a fuller explanation.

Fortunately, this coming week, the attorney general is scheduled to spend two days on Capitol Hill testifying on the Mueller investigation. Foremost on Congress’s agenda should be pinning down the legal and evidentiary basis for Barr’s conclusion that the evidence in the Mueller report cleared President Trump of obstruction of justice, and the role that any inferences Barr drew from the president’s cooperation might have played within it. This will do nothing to reverse the attorney general’s decision or to unwind the damage it has done if it is found to be less than credible. But it will make clear how much weight both Congress and the voting public should assign Barr’s views when considering what additional steps they should pursue to ensure the president is held accountable.

Scott R. Anderson is a fellow in Governance Studies at the Brookings Institution and a Senior Fellow in the National Security Law Program at Columbia Law School. He previously served as an Attorney-Adviser in the Office of the Legal Adviser at the U.S. Department of State and as the legal advisor for the U.S. Embassy in Baghdad, Iraq.

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